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13 - The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies and Tensions

Published online by Cambridge University Press:  18 January 2024

Camillia Kong
Affiliation:
Birkbeck College, University of London
John Coggon
Affiliation:
University of Bristol
Penny Cooper
Affiliation:
Birkbeck College, University of London
Michael Dunn
Affiliation:
University of Oxford
Alex Ruck Keene
Affiliation:
King's College London
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Summary

Introduction

This volume has taken an international approach to learning about, and critically exploring, how legal systems may, or may fail to, assure the (meaningful) participation in decision-making by, with and for individuals who are subject to mental capacity laws (P). Equally, the contributors have explained how laws bring individuals’ values into personal decisionmaking, or present barriers to this, and how values beyond the person's may also feature in such decisions. We invited contributions based on a single template of contextual and law-focused questions across the book's authors, and yet we see significant distinctions in both the practical and the socioethical situations among the respective jurisdictions that the book examines. These are, unsurprisingly, in part explicable by reference to sociocultural, demographic, historical and institutional (including professional hegemonic) distinctions between the different places that the book looks at. They are also a consequence of the distinct critical perspectives and orientations across the book's authorship. And they are explicable given distinct legal framings and assumptions, which prove significant even among the common law systems and their shared traditions that form the focus of the majority of the contributions.

We may begin to collect our own reflections in this concluding chapter by noting that the book's inquiry is pitched as being about mental capacity law. Even among those jurisdictions who share their legal heritage with systems that have expressly enacted ‘mental (in)capacity’ laws, this already presents its own distinct vocabulary, as we see in Stavert's chapter (Chapter 3) on the AWIA in Scotland; likewise the language of guardianship, as discussions of Australia (Chapter 8), the US (Chapter 6) and Hong Kong (Chapter 10) indicate. Accordingly, part of the comparative exercise is in understanding the substance and practical import of technical language when making observations and evaluations. ‘P’ will have been a designation that is alien to readers in many legal systems, and even within legal systems that use the term this designation is not well known outside the realms of mental capacity law. The lack of explicit reference to guardianship laws in the book's title may seem surprising.

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Publisher: Bristol University Press
Print publication year: 2023

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